Citizenship and Immigration Committee on April 21st, 2016

[Vincent Wong, Staff Lawyer, Metro Toronto Chinese and Southeast Asian Legal Clinic]

Thank you. I'll dive straight into the issues.

Firstly, it's our position—and we support Mr. Green's eloquent arguments on this—that an overly rigid application of the physical residency test would leave otherwise deserving applicants unfairly barred from citizenship. We see these cases all of the time for clients who spend time abroad for business or schooling, but what I would outline is that it's also for those situations of compassionate care, for example, cases where clients go back home to take care of their ailing parents.

Therefore, we recommend that whatever test the committee deems appropriate in this situation, whether it be the Koo test or the centralized mode of existence, really gets at the heart of providing that flexibility in situations where it's deemed just. We believe that putting in a deemed residency test that focuses an analysis on a centralized mode of existence would get to the heart also of the concerns surrounding so-called citizens of convenience. We also submit that putting in a deemed residency test will balance the interests of legal clarity and processing efficiency on one hand, with concerns of fairness and equity on the other hand.

The second issue that I'd like to get into is that we recommend the right of appeal to be reinstated for all citizenship decisions. Previously, the Citizenship Act allowed for an automatic right of appeal to Federal Court for essentially all citizenship decisions. Bill C-24 replaced this automatic right of appeal with a far more limited judicial review only with the permission or leave from the court. We submit that it is of critical importance for the rule of law that there be proper judicial scrutiny of all citizenship decisions to ensure that they are legally sound and that discretion is being exercised in a reasonable fashion. This is only possible when effective avenues exist to challenge these decisions.

Finally, my third point relates to that of the policy of requiring an upfront language test to prove language skill for citizenship, and we recommend that this policy be completely scrapped. The reason is that the policy is a double whammy for immigrants because it erects a language barrier, but also a financial barrier to citizenship in that applicants would actually have to pay for testing as an a priori matter before their application is even processed by CIC. We recommend that it be placed within a pre-Bill C-24 system, which allows decision-makers to determine whether there is sufficient knowledge of language through an oral hearing or interview.

We also recommend that the requirement of a written knowledge test to be taken in French or English be repealed, as this requirement essentially amounts to a second language test, which we heard a little earlier about. We agree with the CBA submission on this that, “Language competency required to pass a knowledge test is significantly different than that required to live and work [practically] in Canada.” Previously, language requirements have always focused on practical listening and speaking skills. Requiring applicants to pass a written test in English or French creates additional reading comprehension and written language requirements, areas that historically, prior to Bill C-24, had not been deemed necessary for naturalization.

Now, I appreciate that there are members of the public who, out of good intention, want to promote acquisition of English and French among immigrants in order that they can better improve their socio-economic outcomes. We agree that language acquisition is an important goal for successful settlement; however, this is a situation where you already have the carrot, you don't need the stick. When you use the stick, unintended consequences may happen. Many immigrants and refugees arrive at the bottom of a socio-economic ladder. They don't have time when they're working multiple jobs and taking care of family to get formal language testing done.

[The Chair, Liberal, Borys Wrzesnewskyj]

Thank you, Mr. Wong.

Mr. Kurland, you have seven minutes, please.

[Richard Kurland, Lawyer and Policy Analyst, As an Individual]

I have two points. The proposed amendment to section 5 of the act has a titanic-sized loophole. The second point is the strategic design flaw in the proposed bill.

First, before I begin, I express deep pleasure at the honour and privilege of again being before this standing committee. Thank you for having me here.

The goal of including references to Income Tax Act filings was to resolve the irony that one could be a resident in Canada for immigration purposes but not for tax purposes. If you're going to live here and obtain our Canadian benefits systemically, pay for them.

I'm pleased to see that this component of the current law survived the electoral transition, but there's a gaping loophole. The proposed amendment in its current form fails to include four tiny words. I'll read the sentence. The relevant part is:

met any applicable requirement under the Income Tax Act to file a return of income in respect of three taxation years

It must continue, “as a resident of Canada”. Otherwise, a person can file an income tax return as a non-resident, thus defeating the core intent of Parliament that if you wish to be a citizen you must be resident in Canada, not just for immigration purposes but taxation purposes as well.

The second point relates to our citizenship revocation process. Simply put, in its present form there are fewer procedural safeguards for citizens than permanent residents enjoy. It needs a rethink. Structurally, it's possible to engage a new division at the immigration, refugee and citizenship board, possibly. That could structurally channel citizenship issues for adjudication in a quasi-judicial forum. The alternative, structurally, is to substantively downgrade the person concerned from citizenship to permanent resident in order that they can attain access to a modicum of justice.

Those are the two points. I owed the chair two minutes from last year for going over time. I restore what I owed.

[The Chair, Liberal, Borys Wrzesnewskyj]

I know that it's highly appreciated by the previous chair.

Thank you.

Mr. Ehsassi, you have seven minutes, please.

[Ali Ehsassi, Liberal, Willowdale, ON]

Thank you, Mr. Chair.

I wanted to thank all the witnesses. I've had the opportunity to go over all your statements, and it's quite obvious that each of you brings a lot of expertise to bear, and you've had the chance to actually go through the legislation, through the various provisions to ensure that we do have a good Bill C-6, to ensure that there are no shortcomings or gaps, things of that nature.

I was wondering whether I could ask each and every one of you whether you agree that insofar as the revocation provision is concerned, there isn't enough procedural oversight or mechanisms. Do you agree with that particular statement? What would you envision to ensure that we can strengthen that particular area of Bill C-6? I'd like to ask all three of you to answer that question.

[Stephen Green]

Perhaps I'll go first.

Under the current revocation system I do not think there are enough safeguards. You should be aware that there's a very large class action suit right now dealing with the changes that occurred last year, and I think we need to have proper court oversight in the process. Also, it's interesting. We have an immigration appeal board that deals with refugees and with adjudication matters under the Immigration and Refugee Protection Act. You have a board right there to perhaps be the oversight dealing with citizenship. You may want to consider having that board look at that.

I have just one very quick comment with respect to revocation. One of the cases in the court is of a situation where it was a family of four. There's an allegation that the main applicant had misrepresented something on his immigration, and they were going after all the children as well. That is the problem with this situation. There's not enough oversight. It's just an officer looking at it, making the decision. I would say we have to have proper oversight, and there isn't under the current system.

[Avvy Go]

I absolutely agree with that assessment. It's kind of ironic that you have more right to appeal if you get a parking ticket than you do if your citizenship is revoked.

A lot of good suggestions have been made including perhaps expanding the IRB jurisdiction to include citizenship cases. There are questions about the H and C factors, the humanitarian and compassionate factors, that could also be included up front when an officer decides whether or not to refer a case to a hearing.

Of course, we need judicial oversight at the end of the day, whether it's the right to appeal to the Federal Court or to have a judicial review of a decision from a panel such as the Immigration and Refugee Board. I think all of those are very good suggestions.

[Richard Kurland]

The role of the witness is to assist in improving a proposed bill. It's passed in principle. Clearly we're in a transition of philosophy going from making citizenship harder to get and easier to take away, to making citizenship easier to get and harder to take away. In that context, revocation needs an overhaul. Fundamentally our criminal justice system in Canada is there to sanction inappropriate behaviour with penal consequences. That is not the function of a citizenship act.

[Vincent Wong]

I would just add that as a matter of principle, you're always questioning the significance of the consequences of taking away these rights. If those consequences are really material—and I would argue, in the case of citizenship as a meta-right, that they are really fundamental to any individual who is subject to revocation—then your procedural safeguards have to be very high. If they're not significant or they are somewhat immaterial, then you have more leeway. But certainly I agree with the notion that if we're talking about fraud and misrepresentation, the IRB does these cases all the time for permanent residency, so you might want to look at leveraging the expertise they already have in these sorts of issues for the purposes of citizenship.

[Ali Ehsassi, Liberal, Willowdale, ON]

Thank you.

Given the time limitation, I want to ask Ms. Go and Mr. Wong about section C of their submission, which relates to the issue of expansion of bars to citizenship for foreign charges and convictions.

In that particular section, I thought you made a very compelling argument in which you were talking about how there is this inclination for many to conflate immigration law with criminal law, and how that is fundamentally flawed because each system is supposed to act independently. If you could speak to that particular issue, I'd be very grateful as well.

[Avvy Go]

Sure. In addition to the concern about conflating immigration law with citizenship law, we're also concerned about the fact that while in Canada we are governed by the rule of law. We have a constitution and we have a charter. That's not always the case with many other countries.

At our clinic we have mostly clients from China and Vietnam. I think a strong argument can be made that the rule of law is not always present in those systems, so it's very problematic that we start to kind of equate foreign convictions with convictions in Canada, for instance, and also that we use the citizenship process to basically doubly penalize someone who may or may not have been wrongfully convicted overseas.

For those reasons, we are very concerned about this.

[Vincent Wong]

Right. I would quickly add to my colleague's submissions that it's a seductive notion that they're criminals, they're bad people, and we want to punish them.

[The Chair, Liberal, Borys Wrzesnewskyj]

You have 10 seconds, Mr. Wong.

[Vincent Wong]

We want to use all sorts of avenues to punish them, but it's a slippery slope, because we have a good criminal justice system here. It has procedural safeguards. When you put the criminal punishment on top of the immigration or citizenship punishment, you violate a lot of those procedural safeguards.

[The Chair, Liberal, Borys Wrzesnewskyj]

Thank you, Mr. Wong.

Mr. Tilson, go ahead for seven minutes, please.

[David Tilson, Conservative, Dufferin—Caledon, ON]

Thank you, Mr. Chairman.

I'd like to ask a question to Mr. Green and Mr. Kurland, in particular, and it has to do with subclause 1(8) of Bill C-6, which repeals the requirement that a person intend to reside in Canada if granted citizenship. This was established in Bill C-24. Are you concerned that Canadian citizenship might be sought by those looking for a citizenship of convenience, without the intent of living in Canada once it's obtained?

It appears there are many citizens who get their citizenship and then they're gone. They go to Saudi Arabia and make a lot more money there. I don't mean to pick on Saudi Arabia, but they go to another jurisdiction where they make substantially more funds than they do here.

One of the witnesses in the first round gave the example of Lebanon. In July of 2006 there were 34 ship evacuations of Canadian citizens who left Lebanon. That's ships; that's not individuals. There were 34 ship evacuations and 65 air evacuations. It's interesting to know that many of the people who had the air evacuations, even though it was paid for by the Canadian government, wanted the travel points. That amounts to approximately 15,000 Canadians at a cost of about $75 million. Many of those people returned to Lebanon when things settled down. That's just one example.

That section is gone. I think it was raised by Mr. Wong about this whole issue of citizenship by convenience. It's a great thing to have a Canadian passport. Many people on this planet would love to have a Canadian passport.

Those are my questions for Mr. Green, and then Mr. Kurland.

[Stephen Green]

Thank you.

I am glad to see the intent section is taken out. First of all, from a practical standpoint, I don't think we could ever manage it. If a person becomes a Canadian citizen, and they leave after one month, is that okay? Or did they leave after six months? I don't think it's a practical section.

I say that if you meet the requirements the government has put forward with respect to your residency, then you become Canadianized. That's what we want. Are you a Canadian? Have you thrown your lot in with Canadians? I think that's the purpose of the citizenship test. With a globalized world, people moving, and people working, I think it was an inappropriate section to put in.

With respect to the Lebanon issue that was brought up, I don't think that has anything to do with intention. Those were Canadian citizens who were abroad. We decided to go ahead and help them. If that intention section had been in place, I don't think that would have changed that one bit. I'm glad to see that it's removed.

[David Tilson, Conservative, Dufferin—Caledon, ON]

Mr. Chairman, on that, the difficulty is that with many people who get these things—and I don't have the statistics with me—once they get that blue passport, they're gone.

Mr. Kurland.

[Richard Kurland]

Let's talk about money. If a Canadian passport holder is not in Canada for 10 or 20 years, Canada is not spending money on that person. There's no draw, but the holder has an entitlement to emergency diplomatic services. It's an insurance passport. As a first solution, it's a group insurance plan. Pay the premium if you're not in Canada for five consecutive years, or fail to file Canadian income taxes as a Canadian resident during a certain period of time. Have a $1,000 to $5,000 passport fee for a non-resident Canadian, and problem solved.

Similarly, the last solution—and this will be very unpopular in the blue chip living rooms of this country—is to adopt the American taxation rule, where we tax based on citizenship and not residence. That's a second solution.

[The Chair, Liberal, Borys Wrzesnewskyj]

Thank you.

Ms. Rempel, you have two minutes.

[Michelle Rempel, Conservative, Calgary Nose Hill, AB]

I have a very brief question for all the witnesses, anyone who wants to jump in. I want to be clear. Some of the witnesses have talked about criminal convictions being considered as part of citizenship. Are you suggesting that an overseas criminal conviction should not be considered as part of a review of eligibility for citizenship?

If that's the case, often where we see revocation instances or we get rejections of citizenship, it's when somebody has not disclosed that information on their application. Can you explain some of your comments in the context of that type of situation and what you're suggesting, because I think a lot of people would say that if you want this to be considered on humanitarian grounds or whatever, why not just disclose it on the original application.

If you wilfully do not put that on your application, what about that situation? How do we deal with that?

[Avvy Go]

Our concern is the foreign convictions themselves may have been wrongfully obtained. There are too many variables. It will make the citizenship application process a lot more costly because it will require more resources to determine which convictions you consider and which you don't.

If you do make that a requirement and require people to disclose, then I can see if someone did not disclose it becomes a misrepresentation issue. I think that overall there are too many variables and too many questionable convictions for us to justify making it a requirement.

[The Chair, Liberal, Borys Wrzesnewskyj]

Thank you, Ms. Go.

Ms. Kwan, you have seven minutes, please.

[Jenny Kwan, NDP, Vancouver East, BC]

Thank you very much to all the witnesses for their presentations.

I'd like to touch on the issue that was not discussed today, although it was in the submission from Mr. Wong and Ms. Go. That is the issue around barriers to accessing citizenship. You touch on the issue around language and the upfront requirement, and your recommendation is that we should do away with that and the double testing as well.

But there's also another issue around barriers to access to citizenship and that's the financial barrier. I wonder if you can touch on that issue.

[Vincent Wong]

Sure. Over the past few years we've seen more than a 500% increase in the citizenship processing fee. The justification, of course, is that it will put money into the system to cover processing costs, so it's a money issue. But there are significant long-term problems with that. The most obvious one is for people with low incomes or people who are immigrants or former refugees, it's not that easy for a family to cough up $2,000 in discretionary income to try to get citizenship processed.

We're looking to either reducing the fees altogether or providing waivers in places where it's justifiable.

The other thing, and I'd like the committee to think on this, is that if you put these financial barriers in place or language barriers or other very strict barriers to accessing citizenship, you're essentially disenfranchising a lot of people who are already marginalized who might be in the situation where they can't get to that language level because they're working a lot or they don't have the money. But they're still here in Canada. They're still permanent residents. They still live here. They still work here. They still have children. They contribute to the community. The only difference is that you're essentially disenfranchising them and exacerbating their current marginalization. Then we know if they don't have a vote, the policies are not going to reflect any of their interests.

It's that cycle we're trying to break here.